Introduction
On February 7, 2024, Uttarakhand became the first state in India to have a Uniform Civil Code (UCC) after the President approved the Bill, marking a historical milestone as the first Indian law to formally govern and regulate live-in relationships (LiR). As defined in section 3(4)(b) of the UCC, this is a relationship (in nature of marriage) between a man and a woman who cohabit in a shared household. With the advent of globalisation, several Asian countries in the twenty-first century have witnessed a rise in this new type of social arrangement: LiR or cohabitation without marriage. This has been the case in India as well. Given the traditional social stigma and taboo attached to such an arrangement coupled with grappling issues faced by these couples, legalisation and regulation of LiR had become the need of the hour.
In this backdrop, the UCC is regarded as a much-awaited step though it exhibits a somewhat rigid nature by making registration mandatory, including a provision of notice to parents (if partner(s) is below the age of twenty-one), putting it under the unregulated purview of registrar and adding criminal consequences in case of non-compliance. While it may be regarded as a step in the right direction trying to ensure the safety of individuals in a LiR, there is a looming concern that it might inadvertently erode the distinctiveness of LiR leading to a potential blur of boundaries between these partnerships and conventional marriages.
These stringent measures exacerbate concerns about the erosion of privacy and the potential criminalization of personal choices. Given these developments, it is crucial to carefully examine the privacy implications of this legislation, especially since other states like Gujarat and Assam are also moving towards implementing their own Uniform Civil Code laws. Through this piece the authors shall aim to analyse the same.
Unveiling The Protection Veil: Privacy Invasion Or Protection Of Rights
The legislation incorporated the provisions relating to the LiR to protect the rights of individuals, especially women, and children born out of such relationships. Unfortunately, the noble intention is clouded by concerns regarding potential invasion of privacy, especially when the Supreme Court (SC) has repeatedly interpreted the already existing laws to protect the rights and interests of persons in such relationships.[1]
The landmark Puttaswamy judgment heralded a new era for Indian privacy jurisprudence, as the SC acknowledged the fundamental right to privacy under Article 21 of the Constitution including a negative right against state interference. The SC emphasised that disclosing private information, which could lead to undue intrusion into privacy, is not justified unless authorities are convinced of the necessity, based on the larger public interest. Seen in this light, it could be stated that mandatory registration of LiR is an undue invasion of the privacy as the sphere of privacy allows persons to develop human relations without interference from the outside community or from the State, as stated in the Navtej Singh Johar case. Thus, it appears that the present legislation intrudes on the sphere of privacy by giving ability to state authorities to oversee and regulate the private arrangements and dynamics of individuals’ personal relationships, thereby undermining the autonomy and intimacy associated with LiR.
Moreover, as per the procedure for registration of LiR under section 381(1), partners in a LiR are required to submit a statement in such format and manner as may be prescribed by the Registrar. The authors believe that this lack of clarity and complete arbitrary power given to the Registrar without clear guidelines and specific format to specify the extent of information required could lead to the collection of excessively personal details, potentially exposing couples to social stigma or discrimination. It may result in misuse and mismanagement of sensitive information of these relationships so procured.
Further, Puttaswamy prescribed the concept of narrow tailoring concerning laws that encroach upon the right to privacy, asserting that such laws must be crafted restrictively to effectively achieve their stated objectives without unduly encroaching upon privacy. Without due regard to this, Section 381(3) of the bill empowers the registrar to summon the partners or any other person for verification and may require the partners or the person to provide additional information or evidence. The extent of information the registrar may request lacks clarity. Without clear guidelines on what constitutes relevant information for registration purposes, there is a possibility of risk that registrars may wield undue discretion, potentially leading to unwarranted scrutiny or interference in the private affairs of consenting adults in LiR. Thus, the authors assert that in the context of LiR, where privacy and autonomy are paramount, this lack of clarity raises concerns about potential intrusions into individuals’ personal lives.
Furthermore, Section 385(2) grants the registrar the authority to direct the office-in-charge of the local police station to take appropriate action if a statement under his purview is deemed suspicious or incorrect. However, the definition of suspicious information is left entirely to the registrar’s discretion. What is particularly concerning is the term appropriate action. In the absence of any specific procedural guidelines, the officer-in-charge may wield significant latitude in determining the course of action, potentially leading to inconsistencies and ambiguity in the enforcement or may even possibly engage in physical abuse or the unjustified use of force. This is especially alarming, particularly given the escalating incidence of prison-based violence in India. Hence it is clear that the law is not narrowly tailored when the provisions of the legislation are overly broad and lacking in specific guidelines, leading to potential abuses of power and violations of fundamental rights.
A. Testing on the Anvil of Proportionality
As previously stated, the right to privacy constitutes an integral component of Article 21 of the Constitution. The SC, notably in the Maneka Gandhi case, has established that any violation of Article 21 must adhere to the standard of a fair, just, and reasonable procedure. This criterion is reinforced by the test of proportionality, as outlined in Puttaswamy and further solidified in Anuradha Bhasin v Union of India(UoI). This test contains four-prongs-(a) the law infringing on privacy must have a legitimate goal, (b) it must bear a rational nexus with the said goal, (c) there must not be a less restrictive but equally effective alternative, (d) it must not have a disproportionate impact on the right-holder. In the present case, it can be said that the current legislation has a legitimate aim of safeguarding individual rights within LiR, aligning with the broader objective outlined in Article 44 of the Constitution and also establishes a rational connection with the intended objective, as registration can effectively streamline the enforcement of individuals’ rights. However, to say that the provisions of the legislation are the least restrictive is questionable and warrants scrutiny, to say the least, especially, in the light of recent SC judgment in Mamta Rani v UoI, wherein the Court dismissed a petition seeking the mandatory registration of LiR. Furthermore, the involvement of a prison term that may extend up to 6 months for non-registration is undue criminalization of civil matters. Instead, opting for more tailored approaches like self-declaration and voluntary cohabitation agreements could offer a more suitable alternative without forcefully encroaching upon the privacy of individuals.
The prime reasons for the growth of LiR have been the freedom associated with this living arrangement and the rejection of restrictions that have come about in the institution of marriage. Imposing provisions that mandate adults (below the age of twenty-one) to inform parents of their consensual relationship is a restriction of their freedom. In such a scenario, if the existing law lacks precision in its scope, it can inadvertently lead to misuse, as in the case of Protection of Children from Sexual Offences Act, 2012 (POCSO) which is sometimes used to unduly persecute the consenting individuals in a romantic relationship. Furthermore, the aforementioned situation underscores the disproportionate impact of the law on the individuals involved, impeding their ability to freely choose to live with someone. Hence, the law clearly does not pass the proportionality test and thus, necessitates certain improvements to ensure fairness and justice in its application.
Conclusion
As seen previously, the provisions mandating registration and imposing penalties raise alarms about undue intrusion of the State into personal matters and the potential for unjustified criminalization. Furthermore, the lack of specificity and narrow tailoring in the legislation heightens the risk of abuse of power and violations of fundamental rights. It is evident that the law, as it stands, fails to pass the proportionality test and necessitates careful reconsideration and improvements to ensure fairness, justice, and the protection of individual liberties in its application.
To ensure that the UCC is proportional to the legitimate aim of safeguarding individual rights within LiR, it is essential to re-evaluate the stringent requirements of mandatory registration for individuals in LiR. One approach to achieve this is by transitioning to a system of optional registration or self-declaration. This revised approach maintains the autonomy of individuals while still offering legal acknowledgment for those who opt to register their relationship.
Moreover, the current legislation suffers from a lack of clarity regarding the type and extent of information needed for registration. This ambiguity can be addressed by implementing clear guidelines that outline the necessary documentation and ensure transparency throughout the process. By minimising the collection of sensitive personal information, the registration process can become more respectful of individuals’ privacy. Establishing precise criteria to define suspicious information and creating transparent procedural guidelines for registrars and law enforcement can also help in effectively curbing arbitrary decisions and the misuse of authority. Further, instead of imposing imprisonment or fines for non-registration, alternative measures such as educational programs or counselling should be adopted to encourage registration, without resorting to punitive measures. While acknowledging the significance of recognising LiR in India is a positive stride forward, it is imperative to ensure that this recognition does not come at the expense of privacy and freedom of choice of an individual. To achieve this, it is imperative to shape the provisions in a manner that strikes a delicate balance between safeguarding the individual and respecting personal privacy.
[1] Indra Sarma v V.K.V. Sarma (2013) 15 SCC 755; Revanasiddappa and Ors. v Mallikarjun and Ors. (2023) 10 SCC 1; Chanmuniya v Chanmuniya Virendra Kumar Singh Kushwaha and Ors. (2011) 1 SCC 141; Lalita Toppo v State of Jharkhand and Ors. (2019) 13 SCC 796.
The post is written by Shivansh Pathak and Tamanna A. They are first-year students at the National Law Institute University, Bhopal.